N R SHINDE Vs. SHOBHADEVI SHINDE

JUDGEMENT

(1.) HEARD the learned Counsel appearing on behalf of the petitioner. Petitioner is challenging the order passed on his application seeking withdrawal of the application for withdrawal preferred in Misc. Civil Application which was granted by the trial Court. As a result of the application for withdrawal and acceptance of it by the trial Court, the misc. Application itself had been disposed of. Thereafter, another application was filed seeking withdrawal of the earlier application. The trial Court by its reasoned order has rejected the said application. Against the said order, present C. R. A. has been filed.

(2.) THE learned Counsel appearing on behalf of the petitioner seeks permission for conversion of the Civil Revision Application into a writ petition. This is opposed by the learned Counsel appearing on behalf of the respondent no. 1. The learned Counsel appearing on behalf of respondent No. 1 has relied upon the judgment of this Court in the case of (Bharatkumar Shrimannarayan agrawal v. Anita Trust, through, Priti Razanbhai Patel), reported in 2003 (1)Bom. C. R. (N. B.)230 : 2002 (4) Mh. L. J. 597 and has submitted that such conversion is not permissible. I have perused the said judgment. However, in para 20 of the said judgment, it has been observed as under:-"20. Reliance was placed on a judgment of Rajasthan High Court in (Santosh kanwar and others v. Surgyan Kanwar and others), reported in A. I. R. 2002 Raj. 152 where the learned Single Judge considered the question of conversion of an application under section 115 of the Civil Procedure code into a writ petition under Article 227 even without application. Relying on this, it was submitted at the Bar that such course being permissible conversion should be allowed in this case also. It was pointed out by the learned Counsel that the judgment in the case of (Vishesh kumarv. Shanti Prasad), A. I. R. 1980 S. C. 892 on which reliance has been placed to say conversion is not possible was considered again by the Supreme Court. It was observed that the dicta of A. I. R. 1980 S. C. 892 was confined to the facts of that case. I have no manner of doubt in observing that this Court does have the power in a given rare case to exercise the powers under Article 227 and take up a matter for revision which is prohibited under section 115 but that occasion as has been observed by the Supreme Court in several judgment quoted above is extremely rare. If and when it arises, this Court can exercise the jurisdiction and convert a given application. A Riven writ petition under article 227 may also be converted into a revision under section 115 but what can be done in an isolated case in peculiar facts and circum-stances of a case, should not be adopted as a regular course for defeating the intent of the legislature. " (Emphasis supplied)The issue before this Court in the said case was, whether conversion of revision application enmas, should be permitted or not and this Court has emphatically answered in the negative and has held that permitting conversion of the pending Civil Revision Applications would defeat the very purpose of amendment in section 115 of the Civil Procedure Code. However, in para 20, as quoted hereinabove, the Court has expressly observed that in a given case, such permission can be granted for converting a Civil Revision Application into a writ petition. Further in the matters which were before the Court, Civil revision Applications were already admitted and were pending for final dis-posal. The present petition is not yet admitted. The Apex Court, thereafter, in the case of (Suryo. Dev Red v. Ram Chander Red and others), reported in 2003 (6)S. C. C. 675 has held that the power of the High Court to exercise its jurisdiction under Article 227, cannot be taken away. In view of the said judgment, I am of the view that this is a fit case where the petitioner may be permitted to convert the C. R. A. into a writ petition. Accordingly, petitioner is permitted to convert the C. R. A. in to a writ petition.

(3.) LEAVE to amend is granted.